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Chief Justice Tahilramani’s transfer from Madras High Court to Meghalaya High Court and her subsequent resignation have thrown up questions about the alleged opacity in the functioning of Supreme Court Collegium, and the need for a reform.

Tahilramani

Chennai: The ‘demotion’ of Chief Justice (CJ) VK Tahilramani from the 75-judge Madras High Court (MHC) to the much smaller Meghalaya High Court has divulged the unfettered powers of the Supreme Court Collegium system and its lack of transparency. The boycott on September 10 by advocates part of not only the MHC and its bench in Madurai but the courts across Tamil Nadu highlights the widespread condemnation of the decision.

While the advocates hold no stake in who is appointed as the Chief Justice of the MHC, the reported anger stems from the Collegium making the transfer seems like a punitive act, leading to a boycott after nearly three years of peace. For the most part, the boycott was against the alleged arbitrary exercise of power by the Collegium, which has come to the foreground of the furore over the transfer.

The Collegium system, headed by the Chief Justice of India with four senior judges of the Supreme Court as members, was established to preserve judicial independence, to prevent situations like the series of ‘punishment transfers’ effected during the Emergency in 1975. But due to lingering complaints about its arbitrary functioning, the Centre moved a Constitutional Amendment Bill in August 2014, mandating the creation of a National Judicial Appointments Commission (NJAC) to replace the Collegium system controlled by judges.

But the new system was declared “unconstitutional and void” by a five-judge Constitution bench in October 2015. It maintained that the appointment of judges would remain the Collegium’s prerogative. That the Collegium did not have to offer any explanation about the appointment and transfer of judges mired the whole process in allegations of prejudice
and clashes of ego.

There are various speculations making the rounds in the case of Justice Tahilramani’s transfer. One cites her opposition to the promotion of two Madras High Court lawyers as judges as the reason. The Collegium retaliated by sending her to the much smaller Meghalaya High Court. Another was her verdict in the gang rape of Bilkis Bano and the murder of her family during the 2002 Gujarat riots.

As the proceedings are never made public, except for the short note announcing a decision, the Collegium explained the transfer by merely stating ‘for better administration of Justice’.

While the actual reason may never surface, her refusal to hear public interest litigation and instead distributing it among other benches has arisen as a possible factor. Although she had the portfolio pertaining to PILs involving women, nothing substantial was done. Even the Supreme Court directed ‘one-stop centres’ for women subjected to violence was passed onto another bench. Even journalists covering the MHC expressed disbelief over being unable to report any single judgement passed by her since she took office.

“Although the Supreme Court struck down NJAC Act, it agreed to create a Memorandum of Procedure (MoP) that would bring about transparency in the appointment and transfer of judges. But unfortunately, that continues to remain on paper. Now, the resignation of Justice Tahilramani has given the necessary impetus to get the MoP in practice; the so-called transparency of the SC collegium cannot merely remain on paper,” said M Velmurugan, a member of the Bar Council of Tamil Nadu and Puducherry.

“Judiciary, being a pillar of democracy, ought to gain the confidence of the people. The appointment and transfer of judges cannot remain as opaque as it is now. But unfortunately, in Justice Tahilramani’s case, transparency has taken a thorough beating and so has the Supreme Court Collegium by coming up with such an arbitrary transfer,” Velmurugan added.

For now, the MoP is with the government and the Supreme Court says it has done its due diligence. Nonetheless, allegations remain that the Collegium has repeatedly cleared candidates who fail to fulfil the age or income criteria.

On the other hand, public perception about Justice Tahilramani’s failure to foster aggressive administrative reforms and aid in the reduction of pending cases looms large.

“A multiplicity of issues, which includes Justice Tahilramani’s poor performance, the Supreme Court’s opaque Collegium, and the ego-driven politics bogging the various lawyers’ associations has fuelled the boycott. However, the fact remains that owing to a lack of aggressive leadership, lakhs of cases are pending – with the administration of justice taking a backseat,” said A Narayanan, director of Change India.

“People are disillusioned with pending cases given the court’s strength of 75 judges. Although everything remained stagnant for the past three years, the Chief Justice preferred to be a private person, hearing tax-related matters. The MHC has been lacking an aggressive leader for a while and Justice Tahilramani surely failed to fit the bill,” Narayanan added.

As of June 2019, over four lakh cases are pending at the MHC as per the National Judicial Data Grid, maintained by the Department of Justice (DoJ). It also has the dubious distinction of having as many as 31 per cent of cases categorised as ‘pending with registry’, which does not reflect effective administration of justice.

AIBA comes in support of collegium, asks Tahilramani to respect decision
CHENNAI: Amid the barrage of criticisms over the alleged arbitrary transfer of Madras High Court Chief Justice VK Tahilramani to the Meghalaya High Court, the All India Bar Association (AIBA) has come in support of the Supreme Court Collegium, asking Justice Tahilramani to respect the collective wisdom of the Collegium especially when no allegation of any malafide has been leveled in her resignation. Pointing out the previous decisions of the Collegium, including her appointment as the Acting Chief Justice of the Bombay High Court and thereafter as the Chief Justice of Madras High Court, AIBA chairman Adish C Aggarwala said in his letter, “Having benefited from these decisions of the Collegium, it would be unfair for anyone to even imagine that there could be ulterior reasons for her transfer to Meghalaya High Court.” Had there been any malice, she would not have gotten appointed as the Acting Chief Justice of Bombay High Court three times and Chief justice of Madras High Court, he said. “If all judges and Chief Justices refuse to go to smaller High Courts on such misplaced attitude, then there would not be any judge available to function from out of such places,” he added, taking exception to Justice Tahilramani’s decision to resign, as it amounts to denigration of the Collegium. The association also urged the Centre to take forward the Collegium’s recommendation and notify the transfer of the incumbent Chief Justice of Meghalaya High Court, paving way for his quick assumption of charge as the Chief Justice of Madras High Court.

Withdraw transfer, urges AIDWA
The All India Democratic Women’s Association (AIDWA) has sought the SCCollegium to withdraw the transfer of Chief Justice VK Tahilramani and remedy the situation without any further delay. In a joint statement on Wednesday, AIDWA president Malini Bhattacharya and general secretary Maraim Dhawale said, “The problem is not with the transfer per se, as there is provision for transfer of judges from one court to another. However, in this case, the senior most Chief Justice in the country was asked to shift from the fourth largest court to the smallest one.” Also, the elevation of the Chief Justice of Meghalaya to the Madras High Court was equally arbitrary and without explanation, the statement added. The current controversy pointed to a significant lack of transparency and accountability in the appointment and transfer policy adopted by the Collegium, the association added.

COLLEGIUM COMPOSITION

Chief Justice of India Ranjan Gogoi

Justice AK Sikri

Justice SA Bobde

Justice NV Ramana

Justice Arun Mishra

THE DISSENTERS

From former CJI RM Lodha to retired Justice Madan B Lokur, there have been dissenting voices to Collegium’s earlier decisions. But there are two sitting judges who raised concerns:

Earlier this month, Justice R Banumathi, the sixth senior most judge of the SC, raised objection to the elevation of Himachal Pradesh CJ V Ramasubramanian to the apex court overlooking Manipur CJ Ramalingam Sudhakar, despite the latter being senior

Justice SK Kaul wrote to CJI Ranjan Gogoi in January, dissenting the decision to promote Justice Sanjeev Khanna of Delhi HC to SC superseding Justice Pradeep Nandrajog, the CJ of Rajasthan. He reiterated the importance of seniority in a recent letter